Davidson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 28, 2014. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
RONDA M. DAVIDSON
CIVIL NO. 13-5004
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, Ronda M. Davidson, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Title II and XVI
of the Social Security Act (Act). In this judicial review, the Court must determine whether there
is substantial evidence in the administrative record to support the Commissioner's decision. See
42 U.S.C. § 405(g).
Plaintiff protectively filed her applications for DIB and SSI on February 13, 2007,
alleging an inability to work since January 1, 2005, due to osteoarthritis, degenerative disk
disease, post traumatic stress disorder, chronic low back pain, bipolar disorder, and
schizophrenia. (Tr. 194, 197, 250). An administrative hearing was held on April 24, 2008, at
which Plaintiff, after being informed of her right to representation, testified without the
assistance of a representative. (Tr. 34-52).
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
In a written decision dated September 30, 2008, the ALJ found Plaintiff had not been
under a disability from January 1, 2005, through the date of the decision. (Tr. 89-98). On
November 5, 2008, with the assistance of counsel, Plaintiff filed a written request for review of
the ALJ’s September 30, 2008, decision. (Tr. 125).
As a result of subsequent applications for DIB and SSI filed by Plaintiff on August 25,
2009, Plaintiff was found to be disabled beginning on August 6, 2009. (Tr. 214, 217, 138-143).
On October 5, 2010, the Appeals Council issued an Order remanding Plaintiff’s February
13, 2007, applications, to an ALJ. (Tr. 100-103).
On February 17, 2011, a supplemental hearing before the ALJ was held, at which Plaintiff
appeared with counsel and testified. (Tr. 53-81). At this hearing, Plaintiff amended her alleged
onset date to September 1, 2005. (Tr. 56). Therefore, the relevant time period is September 1,
2005, through August 5, 2009.
By written decision dated May 27, 2011, the ALJ found Plaintiff was not disabled prior
to September 1, 2005,2 but that Plaintiff became disabled on March 20, 2009, and remained
disabled through the date of the decision. (Tr.14). For DIB purposes, the ALJ noted Plaintiff
maintained insured status through December 31, 2010.3 (Tr. 14). The ALJ found that since the
amended alleged onset date September 1, 2005, Plaintiff had an impairment or combination of
impairments that were severe. (Tr. 16). Specifically, the ALJ found Plaintiff had the following
severe impairments: degenerative disk and joint disease of the lumbar spine, obesity, a mood
The Court notes that the ALJ used the January 1, 2005, date as the onset date in the body of the decision. As
noted above, Plaintiff amended her onset date to September 1, 2005.
During the supplemental hearing on February 17, 2011, there was discussion that Plaintiff’s date last insured was
December 31, 2007. (Tr. 60). Some of the exhibits indicate Plaintiff’s date last insured as December 31, 2007,
while other exhibits indicate the date last insured as December 31, 2010. (Tr. 200, 225, 247, 297, 392).
disorder, bipolar disorder, an anxiety disorder, and borderline personality disorder. The ALJ
determined that beginning on March 20, 2009, the established onset date of disability, Plaintiff
had the following severe impairments: Guillain-Barre Syndrome, degenerative disk and joint
disease of the lumbar spine, obesity, a mood disorder, bipolar disorder, an anxiety disorder, and
borderline personality disorder. (Tr. 16).
After reviewing all of the evidence presented, the ALJ determined that since the amended
alleged onset date, Plaintiff’s impairments did not meet or equal the level of severity of any
impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No.
4. (Tr. 17). The ALJ found that, prior to March 20, 2009, Plaintiff retained the residual
functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
could only occasionally climb, balance, kneel, stoop, crouch, and crawl. Further,
the claimant was limited to work where interpersonal contact was incidental to
the work performed; where the complexity of tasks was learned by rote, with few
variables and little judgment required; and where supervision required was
simple, direct, and concrete.
(Tr. 19). With the help of a vocational expert, the ALJ found that prior to March 20, 2009,
Plaintiff could perform work as a poultry production worker, a production line assembler, and
a sewing machine operator. (Tr. 27, 382).
The ALJ found that since March 20, 2009, Plaintiff retained the RFC to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
she cannot climb, balance, kneel, stoop, crouch, and crawl; and cannot ambulate
effectively for more than short distances without an assistive device. The
claimant is limited to work where interpersonal contact is incidental to the work
performed; where the complexity of tasks is learned by rote, with few variables
and little judgment required; and where supervision required is simple, direct,
and concrete. Further, due to pain, fatigue, and other symptoms, the claimant is
unable to complete an 8-hour workday on a regular and continuing basis.
(Tr. 25). The ALJ found that as of March 20, 2009, Plaintiff was disabled and continued to be
disabled through the date of the decision. (Tr. 28).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 8, 2012. (Tr. 1-4). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 12).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 15, 16).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the
Commissioner's decision, the Court may not reverse it simply because substantial evidence exists
in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, if after reviewing the record it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ
must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3),
1382(3)(c). A Plaintiff must show that her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §§ 404.1520, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920.
Plaintiff argues the following issue on appeal: 1) the ALJ failed to fully and fairly
develop the record; 2) the ALJ erred in his severity determination; 3) the ALJ erred in
determining Plaintiff’s credibility; and 4) the ALJ erred in determining Plaintiff’s RFC.
Fully and Fairly Develop the Record:
While an ALJ is required to develop the record fully and fairly, see Freeman v. Apfel,
208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination only when it is
necessary for an informed decision), the record before the ALJ contained the evidence required
to make a full and informed decision regarding Plaintiff’s capabilities during the relevant time
period. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ must develop
record fully and fairly to ensure it includes evidence from treating physician, or at least
examining physician, addressing impairments at issue).
At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing she suffers from a medically-severe impairment
at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
While the ALJ found some of Plaintiff’s alleged mental impairments were non-severe,
the ALJ clearly considered all of Plaintiff’s impairments, including the impairments that were
found to be non-severe. (Tr. 15); See Swartz v. Barnhart, 188 F. App'x 361, 368 (6th Cir.2006)
(where ALJ finds at least one “severe” impairment and proceeds to assess claimant's RFC based
on all alleged impairments, any error in failing to identify particular impairment as “severe” at
step two is harmless); Elmore v. Astrue, 2012 WL 1085487 *12 (E.D. Mo. March 5, 2012); see
also 20 C.F.R. § 416.945(a)(2) (in assessing RFC, ALJ must consider “all of [a claimant's]
medically determinable impairments ..., including ... impairments that are not ‘severe’ ”); §
416.923 (ALJ must “consider the combined effect of all [the claimant's] impairments without
regard to whether any such impairment, if considered separately, would be of sufficient
severity”). Thus, the ALJ's finding that some of Plaintiff's alleged mental impairments were not
“severe” impairments does not constitute reversible error.
Subjective Complaints and Credibility Analysis:
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff's daily
activities; (2) the duration, frequency, and intensity of her pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of her medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may
not discount a claimant's subjective complaints solely because the medical evidence fails to
support them, an ALJ may discount those complaints where inconsistencies appear in the record
as a whole. Id. As the United States Court of Appeals for the Eighth Circuit observed, “Our
touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards
v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
After reviewing the administrative record, it is clear that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the record
revealed that, during the time period in question, Plaintiff sought treatment for back pain after
flipping a canoe; that Plaintiff reported she was taking care of her ex-husband’s two children;
and that Plaintiff was doing all of the cooking and cleaning for her ex-husband, his children and
the children’s aunt with whom Plaintiff was living. (Tr. 672, 714-715). When questioned about
taking care of her mother by the ALJ, Plaintiff testified that she had missed an appointment
because her ex-husband took Plaintiff to see her mother who was in the hospital. (Tr. 75).
However, Plaintiff reported to Dr. Janet Stannard in March of 2008, that she returned to
Arkansas from Missouri, where she had lived for almost five years, to take care of her mother.
The Court would also note that while Plaintiff alleged an inability to seek treatment due
to a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that
lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics, or
hospitals does not support plaintiff’s contention of financial hardship). The record revealed that
during the relevant time period Plaintiff was also able to come up with the funds to support her
daily smoking habit, as well as her use of marijuana. (Tr. 518, 620).
Therefore, although it is clear that Plaintiff suffers with some degree of pain, she has not
established that she is unable to engage in any gainful activity. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000) (holding that mere fact that working may cause pain or discomfort does not
mandate a finding of disability). Accordingly, the Court concludes that substantial evidence
supports the ALJ’s conclusion that Plaintiff’s subjective complaints were not totally credible.
The ALJ’s RFC Determination:
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes medical
records, observations of treating physicians and others, and the claimant’s own descriptions of
her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from symptoms such as pain
are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of
Appeals for the Eighth Circuit has held that a “claimant’s residual functional capacity is a
medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s
determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace. Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect his RFC.” Id.
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical records
when he determined that prior to March 20, 2009, Plaintiff maintained the RFC to perform light
work with limitations. The ALJ discussed the medical opinions of examining, and nonexamining medical professionals, including the opinions of Drs. Judith McGee, Thomas Davant
Johns, N. Dulap, and Elbert H. Cason, and set forth the reasons for the weight given to the
opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (“It is the ALJ’s function
to resolve conflicts among the opinions of various treating and examining physicians”)(citations
omitted). Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s RFC determination for the time period in question.
Hypothetical Question to the Vocational Expert:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that
the vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion
that during the relevant time period Plaintiff's impairments did not preclude her from performing
work as a poultry production worker, a production line assembler, and a sewing machine
operator. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert
based on properly phrased hypothetical question constitutes substantial evidence).
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 28th day of February, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?